29 May 2016

Upholding the constitutional validity of provisions criminalizing defamation in India, the Supreme Court in a recent decision has upheld the need for the crime considering the social ethos and the constitutional position of "right of reputation" of individuals.

Rejecting a number of petitions filed by renowned political figures (including Rahul Gandhi and Arvind Kejriwal), the Supreme Court in its decision in Subramanian Swamy v. Union of India, Writ Petition [Criminal] No. 184/2014] dated 13.05.2016has accepted the Government's position that the criminal provisions are in the nature of "reasonable restrictions" and are "pedestaled on the doctrine of non-absoluteness of any fundamental right, cultural and social ethos, need and feel of the time, for every right engulfs and incorporates duty to respect other’s right and ensure mutual compatibility and conviviality of the individuals based on collective harmony and conceptual grace of eventual social order ..."

Before adverting to the conclusion of the Supreme Court in detail, it is critical to note some of the submissions of the Attorney General of India whose arguments may well reflect the Government's position on a number of aspects;

"freedom of speech as a right cannot be understood in isolation". On such premise, therefore, "it cannot be said that there is an unbridled right to free, much less defamatory speech"

"criminalization of defamation or damage to reputation is meant to subserve basic harmony in polity"

"right to reputation" is a constitutionally protected fundamental right and "A person’s reputation is an inseparable element of an individual’s personality and it cannot be allowed to be tarnished in the name of right to freedom of speech and expression because right to free speech does not mean right to offend."

"It is a misconception that injury to reputation can adequately be compensated in monetary terms. Reputation which encapsules self-respect, honour and dignity can never be compensated in terms of money."

The Supreme Court also took note of the submissions, albeit in great detail, made by other parties.

On the role and position of a right to 'reputation' as central to an individual's identity and rights, the Supreme Court quoted Bhagawad Gita, Holi Quran, Holy Bible, William Shakespeare, Socrates, Aristotle, international covenants, etc. as they collectively "reflect the purpose and concern and recognize reputation as an inseparable right of an individual". In essence, the Supreme Court concluded that these covenants,

"explicate that the individual honour and reputation is of great value to human existence being attached to dignity and all constitute an inalienable part of a complete human being. To put it differently, sans these values, no person or individual can conceive the idea of a real person, for absence of these aspects in life makes a person a non-person and an individual to be an entity only in existence perceived without individuality." [para 32]

The Supreme Court thereafter referred the various decisions of English, Canadian, South African courts, ECHR, and its own earlier decisions on the subject to declare that right to reputation constituted a fundamental right protected under Article 21 of the Constitution of India in the following terms;

"... It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the downtrodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented, and it is perceived as an honour rather than popularity." [para 50]

The Supreme Court thereafter explained the rationale for criminalization of an act so as to lay down the test for examining the validity of the criminal provisions relating to defamation. It opined as under;

"82. The concept of crime is essentially concerned with social order. It is well known that man’s interests are best protected as a member of the community. Everyone owes certain duties to his fellow-men and at the same time has certain rights and privileges which he expects others to ensure for him. This sense of mutual respect and trust for the rights of others regulates the conduct of the members of society inter-se. Although most people believe in the principle of ‘live and let live’, yet there are a few who, for some reason or the other, deviate from this normal behavioural pattern and associate themselves with anti-social elements. This obviously imposes an obligation on the State to maintain normalcy in the society. This arduous task of protecting the law abiding citizens and punishing the law breakers vests with the State which performs it through the instrumentality of law. It is for this reason that Salmond has defined law as a ‘rule of action’ regulating the conduct of individuals in society. The conducts which are prohibited by the law in force at a given time and place are known as wrongful acts or crimes, whereas those which are permissible under the law are treated as lawful. The wrongdoer committing crime is punished for his guilt under the law of crime."

In this background, the concluded on the following legal position, rejecting the challenge in the petitions, inter alia in the following terms;

"88. From the aforesaid discussion, it is plain as day that the contention that the criminal offence meant to subserve the right of inter se private individuals but not any public or collective interest in totality is sans substance. ...

89. We have referred to this facet only to show that the submission so astutely canvassed by the learned counsel for the petitioners that treating defamation as a criminal offence can have no public interest and thereby it does not serve any social interest or collective value is sans substratum. We may hasten to clarify that creation of an offence may be for some different reason declared unconstitutional but it cannot be stated that the legislature cannot have a law to constitute an act or omission done by a person against the other as a crime. It depends on the legislative wisdom. Needless to say, such wisdom has to be in accord with constitutional wisdom and pass the test of constitutional challenge. If the law enacted is inconsistent with the constitutional provisions, it is the duty of the Court to test the law on the touchstone of Constitution."

The Court did not stop the analysis here. It went on to examine the scope of freedom of speech and expression, as another guaranteed fundamental right and thereafter undertook a balancing act between one individual's right to speech and another individual's right to reputation to opine as under;

"140. We are in respectful agreement with the aforesaid enunciation of law. Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed to be crucified at the altar of the other’s right of free speech. The legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate. ...

...

149. ... Criticism and commentary on policies, enactments or opinions do not remotely constitute defamation. Disapproval is not defamation. The argument ignores the scope and ambit of the contours of what is criminal defamation. Bearing in mind the factual scenario, the Court has discussed about balancing of freedom of expression and “special interest”. The Court was not concerned with balancing of Article 19(1)(a) and the facet of Article 21 of the Constitution. Therefore, in the ultimate conclusion, we come to hold that applying the doctrine of balancing of fundamental rights, existence of defamation as a criminal offence is not beyond the boundary of Article 19(2) of the Constitution, especially when the word “defamation” has been used in the Constitution.

...

163. We have referred to two concepts, namely, constitutional fraternity and the fundamental duty, as they constitute core constitutional values. Respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each other's dignity. The individual interest of each individual serves the collective interest and correspondingly the collective interest enhances the individual excellence. Action against the State is different than an action taken by one citizen against the other. The constitutional value helps in structuring the individual as well as the community interest. Individual interest is strongly established when constitutional values are respected. The Preamble balances different and divergent rights. Keeping in view the constitutional value, the legislature has not repealed Section 499 and kept the same alive as a criminal offence. The studied analysis from various spectrums, it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression. As a prescription, it neither invites the frown of any of the Articles of the Constitution nor its very existence can be regarded as an unreasonable restriction."

This judgment is a very interesting appraisal on the positioning and status of various fundamental rights as also positioning of an individual's right in the larger social order. A must read for any student of constitutional law.

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